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Page 2 operations and surveys for them should be continued. If the species are located and especially if they are nesting or displaying on the mining site the Service should be contacted immediately. The federally listed birds are protected under the Endangered Species Act (Act), as amended, 16 U.S.C. 1531 et seq., but while candidate species presently have no legal protection under the Act, it is within the spirit of the Act to consider project impacts to potentially sensitive candidate species. Additionally, please be apprised of the potential application of the Migratory Bird Treaty Act of 1918 (MBTA), as amended, 16 U.S.C. 703 et seq; and the Bald Eagle Protection Act of 1940 (BEPA), as amended, 16 U.S.C. 668 et seq; to your project. The MBTA does not require intent to be proven and does not allow for "take," except as permitted by regulations. Section 703 of the MBTA provides: "Unless and except as permitted by regulations it shall be unlawful at any time, by any means or in any manner, to take, capture, kill, attempt to take, capture, or kill, possess any migratory bird, any part, nest, or eggs of any such bird The BEPA prohibits knowingly taking, or taking with wanton disregard for the consequences of an activity, any bald or golden eagles or their body parts, nests, or eggs, which includes collection, molestation, disturbance, or killing activities. The Act also prohibits knowingly taking of listed species, which includes harm, harassment, capture, or collection activities, except when specifically permitted by the Service. The red-tailed hawks (Buteo jamaicensis), cooper's hawks (Accipiter cooperii), and all the other songbirds found on the proposed mining site are protected by the MBTA. The Service believes that the mining company should either transplant all nests found in the mining area prior to nesting seasons or should avoid mining an area until after the nesting season then transplant the nests in the fall. Though times of nesting varies by species the Service will consider the nesting season to be from May 1 to July 31. The mining company will need to acquire permits from the Service for nest transplant or removal. It was stated in the permit application that the most diverse habitat type for birds was the bottomland habitats. At least a 100 meter "no mining" buffer strip should be placed around the bottomland areas in order to provide some benefit fcr the most species of birds as well as to provide some benefit for all the other animals that utilize bottomland areas. Avoidance of bottomland areas will also help to protect water quality. In addition to the birds and mammals on the species list, the Service believes that impacts may occur to the endangered Colorado squawfish (Ptychocheilus Lucius), razorback sucker (Xyrauchen texanus), bonytail (Gila elegans), humpback chub (Gila cypha) and the candidate roundtail chub (Gila robusta) and Colorado River cutthroat trout (Oncorhynchus clarki pleuriticus) from water depletions associated with coal mining operations. Additional impacts may be caused by poor water quality as a result of mining. There was no discussion on water depletion amounts in the permit application. An estimate of water depletion amounts should be made and formal consultation should be initiated with the Service. Formal consultation will have to take place with the Office of Surface Mining Reclamation and Enforcement (OSM) since they are the lead